HECTOR A

Document Sample
HECTOR A Powered By Docstoc
					HECTOR A. SOLA AND SHARON             IN THE COURT OF COMMON PLEAS
SOLA,                                 FOR THE 26TH JUDICIAL
                                      DISTRICT, MONTOUR COUNTY
                                      BRANCH, PENNSYLVANIA
         Plaintiffs                   CIVIL ACTION - LAW

vs

STAN H. CHAO, M.D.,                   CASE NO:   122 OF 2000

         Defendant


APPEARANCES:

R. MATTHEW PATCH, ESQUIRE, Attorney for Plaintiffs
DONNA L. RAE, ESQUIRE, Attorney for Defendant

May 25, 2000.   James, J.

                               OPINION


         Plaintiffs filed a complaint at law alleging medical

negligence on the part of defendant.       Defendant filed two

preliminary objections.     The first objection was in the form of

a “Demurrer/Motion to Strike All Claims for Recklessness.”

Plaintiff stipulated to strike the allegations of recklessness

from the complaint.

         The second preliminary objection was a “Motion to

Strike Complaint/Alternative Motion for More Specific Pleading”

to paragraph 10(A) which alleged the following “act” on the

part of defendant:    “10(A) failing to perform the excision of

the pilonidal cyst in accordance with medically accepted

standards for general surgeons….”       Defendant suggests that this



                                  1
allegation of negligence does not comply with the requirement

of   Pa.R.C.P. 1019(a) that “the material facts on which a cause

of action or defense is based shall be stated in a concise and

summary form.”   Defendant also contends that the general, non-

specific allegation of paragraph 10(A) leaves defendant

“powerless to prevent Plaintiff from obtaining leave to amend

the Complaint to allege new and different theories of

negligence after the running of the statute of limitations”

under Connor v. Allegheny General Hospital, 501 Pa. 306, 461

A.2d 600 (1983).   We agree.

          Pa.R.C.P. 1019(a) requires that the complaint state

“material facts” to support a cause of action.   “A cause of

action in negligence has been defined as the negligent act or

acts which occasioned the injury for which relief is sought.”

Reynolds V. Thomas Jefferson Hospital, 450 Pa.Super. 327, 338,

676 A.2d 1205, 1210 (1996), citing Cox V. Wilkes-Barre Railway

Corporation, 334 Pa. 568,570, 6 A.2d 538, 539 (1939).

          In Connor, supra, the Pennsylvania Supreme Court

found that general allegations of negligence could be amplified

by later amendments to the complaint.   However, in order to be

more specifically apprised of the act or acts of negligence (as

required by Pa.R.C.P. 1019(a)), a party “could have filed a

preliminary objection in the nature of a request for a more

specific pleading or it could have moved to strike that portion


                                 2
of (appellant’s) complaint.”    Connor at 501 Pa. page 311, 461

A.2d at page 602.

          As a result of Connor, defendants are properly

concerned about unidentified allegations of negligence arising

late in the litigation process flowing out of a general

allegation of negligence raised early in the process.    Some

common pleas courts have been rightly attuned to plaintiffs who

have less knowledge than the defendant medical providers about

the care and/or treatment provided.    While weighing the

“practical considerations involved with medical malpractice

actions,” one court gave the plaintiff a “reasonable amount of

time to conduct discovery”, and then allowed plaintiffs to

amend the general allegations in their complaint.    Johnson v.

Patel, 19 D&C 4th 305 (Lack. Cty. 1993).

          A common pleas court has upheld allegations of

negligence that were “not very specific,” and suggested the

“court adopt a rule allowing courts to grant plaintiffs a

period of time for discovery prior to the filing of a

complaint” to avoid the Connor conundrum.    See Rogers v.

Soldiers and Sailors Memorial Hospital, 16 D&C 573 (Tioga Cty.

1991).

          There are methods by which a plaintiff could be

protected from the trap of after-discovered evidence of a new

cause of action.    First, filing the claim at a date much


                                  3
earlier than the date of the statute of limitation would allow

more time for discovery and, if necessary, amendments to the

pleadings.    Second, a thorough investigation and analysis of

the case prior to filing could eliminate overlooked causes of

action.    Third, plaintiffs could file a summons and engage in

pre-trial discovery, if appropriate.   See Potts v. Consolidated

Rail Corp., 37 D&C 4th 196 (Allegheny Cty. 1998).

           Finally, this court can envision situations where a

general allegation of negligence in a complaint could be left

open (under limited circumstances) for a reasonable amount of

time while discovery proceeds.    For example, under a separate

petition, a party could ask for a reasonable time to conduct

discovery before amending the general allegations of negligence

in a complaint where knowledge of material facts is in the

exclusive control of an adverse or hostile party.    However,

there is no such petition before the court, nor does this court

encourage the use of such petitions, except where absolutely

necessary to prepare a proper complaint.

           The issue before this court is whether the allegation

of negligence in paragraph 10(A) conforms with Pa.R.C.P.

1019(a).    The Pennsylvania appellate courts have said that

“while it is not necessary that the complaint identify the

specific legal theory of the underlying claim, it must apprise

the defendant of the claim being asserted and summarize the


                                  4
essential facts to support the claim.”    Estate of Edith May

Swift et al. v. Northeastern Hospital of Philadelphia, 456

Pa.Super. 330337, 690 A.2d 719,723 (1997).

          In a common pleas case similar to ours, the Somerset

common pleas court struck paragraphs containing general

allegations of negligence.   The court acknowledged that the

complaint must be read as a whole and that each individual

averment at issue must be read in connection with all other

parts and averments of the complaint.    However, “a physician

charged with negligence and unskillfulness in the practice of

his profession is entitled to be advised of the specific acts

of commission or omission which constitutes the negligence and

unskillfulness complained of, so that plaintiff’s proof may be

confined to such acts, and so that he may reasonably prepare

for his defense.”   Boyd v. Somerset Hospital, 24 D&C 4th 564

(Somerset Cty. 1993), citing Gray v. Oech, 49 D&C 2d 458

(1970).

          After considering the allegation of paragraph 10(A)

by itself and in the context of the entire complaint, it is

clear that paragraph 10(A) is simply a general allegation of

negligence without reference to sufficient material facts.

There are no acts of commission or omission specified.

Defendant is entitled to be informed of the specific nature of

the acts alleged so that he may prepare and present a defense.


                                 5
This paragraph must be stricken, with leave to amend the

complaint to include specific acts.   The court will provide

plaintiff with additional time to review the matter, conduct

further investigation, and to amend the complaint accordingly.




                                6
HECTOR A. SOLA AND SHARON SOLA,               IN THE COURT OF COMMON
                                              PLEAS FOR THE 26TH
                                              JUDICIAL DISTRICT,
           Plaintiffs                         MONTOUR COUNTY BRANCH,
                                              PENNSYLVANIA
Vs
                                              CIVIL ACTION - LAW

STAN H. CHAO, M.D.,                           CASE NO:   122 of 2000


           Defendant



                               ORDER



           AND NOW, this 25th day of May, 2000, it is ORDERED AND

DECREED as follows:

     1.   By agreement and stipulation of the parties,

          defendant’s first preliminary objection in the nature

          of a Demurrer/Motion to Strike All Claims for

          Recklessness is granted.       All claims regarding

          “recklessness” are hereby stricken.

     2.   Defendant’s second preliminary objection in the form of

          a Motion for More Specific Pleading is granted in

          regard to Paragraph 10(A).      Paragraph 10(A) is

          stricken, with leave to amend the complaint with more

          specificity.




                                     7
3.   Plaintiff shall file an amended complaint in accordance

     with the Opinion and this Order within sixty days of

     this date.



                  BY THE COURT




                  _________________________________
                  HONORABLE THOMAS A. JAMES, JR., J.




                                 8

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:18
posted:11/22/2011
language:English
pages:8